Geotimes - January 2002 - Law of the SeaGeotimesNews
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U.S. Support for the Law of the SeaChristina Reed and Lisa M. Pinsker

On Nov. 27, U.S. Ambassador
to the United Nations (UN) Sichan Siv cited national security and economic and
environmental interests in announcing the Bush administration’s support for
the Convention on the Law of the Sea. A cornerstone of international ocean policy,
the Convention establishes national jurisdiction and international codes of
behavior for Earth’s oceans.

Although the United States agreed to abide by the principles of the Convention
created in 1982, Senate treaty ratification has yet to occur. Siv’s statement
to the UN Economic and Social Council in New York makes this the second administration
to support ratification, and follows the recommendations made earlier in the
month by the president’s Commission on Ocean Policy urging immediate ratification.
The urgency reflects an upcoming deadline for the United States to actively
participate in setting boundaries along the continental margin.

On Sept. 28, 1945, President Truman declared the continental shelf government
property, saying: “The Government of the United States regards the natural resources
of the subsoil and seabed of the continental shelf beneath the high seas but
contiguous to the coasts of the United States as appertaining to the United
States, subject to its jurisdiction and control.”

Although Truman used the term continental shelf, he was referring to the entire
continental margin — which includes the shelf, slope and rise. Truman’s statement
was a claim of new ocean territory and the resources on the bottom.

But Truman’s declaration was not enough. An international law was needed to
govern the rights and boundaries on the high seas. In 1982, the United Nations
stepped in with its Convention on the Law of the Sea.

Put into force in 1994, the Convention established customary international laws
such as limiting all coastal countries’ territorial sovereignty of the sea to
12 nautical miles beyond its shores and maintaining high-sea freedoms within
a 200-nautical-mile exclusive economic zone or EEZ. One hundred and thirty seven
countries have joined the convention, including Russia, the United Kingdom,
Ireland, India, Australia, New Zealand, Argentina and Brazil. Notably absent
is the United States.

Although the United States worked with the UN to establish the laws of the 1982
Convention, America did not sign because of concerns over rights to deep seabed
mining. When an amendment resolved those concerns in 1994, the United States
signed the amendment, but not the Convention. Since then, the Senate has not
ratified the amendment or the Convention. In the meantime, the United States
acts as an observer to the proceedings related to the treaty without acting
as a formal party.

Why
now?

The Convention also established
the Commission on the Limits of the Continental Shelf. The commission holds
elections every five years, with the next elections coming up in April 2002.
The commission recommends to the UN whether the limits a country submits for
its continental shelf are scientifically valid, legally defensible and politically
acceptable.

Russia is poised to become the first country to submit its limits for the commission’s
review. The limits pertained to Russia’s continental shelf in the Arctic. Under
the international laws of the Convention, every coastal country has exclusive
economic rights out to 200 nautical miles, even if their continental shelf does
not extend that far. However, countries are not limited to that zone if their
continental shelves extend beyond 200 nautical miles. And the Convention does
not require a formal claim. If a country defines its limits based on the Convention’s
recommendations, then those limits are considered final and binding. Should
the commission recommend that Russia go ahead and follow the limits it submits,
and Russia does, then no country can argue where those limits fall.

Following a Nov. 13 and 14 workshop in Washington, President Bush’s recently
created Commission on Ocean Policy encouraged the Senate to ratify the Convention
before February 2002. Members of the American Bar Association, the House of
Representatives, the State Department and the U.S. Coast Guard testified on
the Convention’s importance to domestic resources and international security.

“It is true that there is a long list of treaties which the United States has
signed, abides by and supports, but has not ratified,” says Robert Hirshon,
president of the American Bar Association. He went on to note that until it
joins the UN Convention on the Law of the Sea, the United States is ineligible
to elect a scientist to the Commission on the Continental Shelf and identify
for the Convention the limits of its continental margin beyond 200 nautical
miles. “As oil exploitation has now become technologically feasible in these
distant areas, certainty of jurisdiction is essential to stability,” Hirshon
says.

Geologic
criteria

Article 76 of the Convention
defines the continental shelf and the criteria a coastal country must meet to
extend the outer limits of its continental shelf beyond 200 nautical miles.
“For extending the limits of the outer continental shelf there are multiple
criteria that may be applied, some of them based largely on bathymetry, and
some based on the geologic structure,” says John Haines, program coordinator
of coastal and marine geology at the U.S. Geological Survey (USGS).

The USGS was one U.S. agency involved with the State Department in developing
strict scientific criteria for Article 76. These rules include establishing
the foot of the continental slope, meeting the stated requirements for the thickness
of sedimentary rocks, satisfying geomorphological requirements and meeting distance
and depth criteria, or by any combination of these methods.

Because no country has formally extended its exclusive economic zone beyond
200 nautical miles, “it’s a bit speculative what the requirements are going
to be. We begin with the assumption that the U.S. is going to be held to an
extremely high standard, because we have technological capabilities that will
allow us to collect the kind of data that aren’t readily available to some other
nations.” Haines says.

The USGS is currently assessing how existing data might serve as the basis for
supporting any claims. “We began preliminary planning last year, and the project
has really hit the ground this year,” Haines says, after the State Department
voiced concern about U.S. data holdings should they decide to press forward
with a claim. “Right now we could produce a claim based on existing data. The
question is, given the shortcomings in that data, would our claim be better
substantiated with better data?” The U.S. EEZ and outer continental shelf are
not comprehensively mapped. More bathymetric data are needed for depth profiles
and more modern, multi-channel seismic data are needed to evaluate sediment
thickness along the continental margin, Haines says.

A bathymetric contour is the starting point for calculating the continental
shelf extension. The National Oceanic and Atmospheric Administration heads U.S.
bathymetric mapping efforts. The primary concern about existing bathymetric
maps is the density of information on the slope. The current maps are not made
with modern, multi-beam data, Haines says. “And when you’re trying to define
a contour, a depth contour, the better the data, the more regularly sampled,
the denser the sampling, the better you can define that line.”

Another key section of the criteria depends on the thickness of sediments deposited
on the continental margin. Known informally as the “Irish Formula,” it articulates
the procedure for determining a shelf cutoff limit that’s based on the thickness
of sedimentary material. Member nations accepted the formula, created by the
Irish delegation, as a compromise to allow wide-margin coastal states to claim
their “fair share of the non-living resources of the seabed without encroaching
excessively upon the resources that more properly belong to the international
community,” says Ron Macnab, a North American expert on the Law of the Sea,
who gave his personal perspective to Geotimes.

The USGS does not have a comprehensive data set, particularly multi-channel
seismic, to accurately estimate that thickness, Haines says. Much USGS data
comes from older, single-channel seismic data that do not as accurately describe
the velocity structure of the material, critical to determining the thickness.
So, Haines says, the United States will most likely need to improve sediment
data before moving forward with any claim.

What
next?

Although the Bush administration
supports the Convention, the final decision rests with the Senate. According
to Lynne Weil, press secretary for the majority staff of the Senate Foreign
Relations Committee, the committee cannot move forward with the Convention without
a letter stating the priority of treaties from the State Department. The State
Department has confirmed a draft of the Treaties Priority letter.

Whereas Sen. Joe Biden (D-Del.), chairman of the committee, supports the Law
of the Sea, Republican committee members led by Sen. Jesse Helms (R-N.C.) oppose
ratification. Senate Republicans “generally speaking have not supported the
Law of the Sea treaty because it would create new United Nations bureaucracy,”
says Lester Munson, press secretary for the minority staff of the Foreign Relations
Committee. Additionally, he says there are more technical objections, but he
did not disclose them.

Still, with the support of the Bush administration and U.S. industry, a consensus
is growing to move forward with formal U.S. participation in the Law of the
Sea. At the November workshop for the Commission on Ocean Policy, Robert Hirshon
summed up those sentiments: “There does not now appear to be any rationale that
supports our continuing nonparticipation in an agreement that so effectively
stemmed the rising tide of claims of national jurisdiction in the oceans, and
that will continue to serve our interests as long as the United States sits
astride two great oceans.”